Opinion
Criminal Action No. 14-20610
12-18-2015
UNITED STATES OF AMERICA, Plaintiff, v. OTIS LEE MORGAN, JR., Defendant.
Honorable Victoria A. Roberts
REPORT AND RECOMMENDATION TO DENY DEFENDANT'S MOTION TO DISMISS COUNTS TWO AND FOUR OF THE INDICTMENT [49]
I. RECOMMENDATION
Before the Court is Otis Lee Morgan, Jr.'s ("Morgan's") motion to dismiss Counts Two and Four of the indictment. [49]. The government filed a response. [53]. The motion has been referred to this Court for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the following reasons, the Court RECOMMENDS that Morgan's motion [49] be DENIED.
II. REPORT
A. Background
Morgan has been indicted on various charges stemming from his alleged September 2014 robbery of two separate Family Dollar Stores at gunpoint in Detroit, Michigan. [9; 21, Ex. A]. On both occasions, he allegedly approached the store clerk, brandished what appeared to be a Tech- 9 nine-millimeter handgun, and stole cash along with store merchandise. [21, Ex. A ¶¶ 7-9]. The charges brought against Morgan include, among others: Interference with Commerce by Robbery, in violation of 18 U.S.C. § 1951(a) (Counts One and Three, hereinafter the "Hobbs Act robbery" charges); and Use of a Firearm During and in Relation to a Crime of Violence, in violation of 18 U.S.C. § 924(c) (Counts Two and Four, hereinafter the "§ 924(c)" charges). [9].
More specifically, Counts Two and Four allege that on September 4, 2014 and September 15, 2014, respectively, Morgan "did knowingly and intentionally use and carry and brandish a firearm, during and in relation to the commission of a crime of violence..., that is, interference with commerce by robbery..." [9].
In Morgan's case, the Hobbs Act charges serve as predicate offenses for the respective § 924(c) charges. The Hobbs Act criminalizes robbery that "in any way or degree obstructs delays, or affects commerce or the movement of any article or commodity in commerce . . ." 18 U.S.C. § 1951(a). The statute defines "robbery" as:
the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force , or violence, or fear of injury, immediate or future, to his person or property , or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining.Id. at § 1951(b)(1) (emphasis added).
18 U.S.C. § 924(c) calls for specified mandatory minimum sentences where a "person who, during and in relation to any crime of violence . . . for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm . . ." 18 U.S.C. § 924(c)(1)(A) (emphasis added). In turn, that statute defines the term "crime of violence" as:
an offense that is a felony and - (A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.18 U.S.C. § 924(c)(3)(A)-(B).
Sub-sections (A) and (B) will hereinafter be referred to as the "Force Clause" and the "Residual Clause," respectively.
Morgan currently moves to dismiss the § 924(c) charges on the grounds that: (1) Hobbs Act robbery, as defined in 18 U.S.C. § 1951(b), "categorically fails to constitute a crime of violence under § 924(c)(3)(A) (the [F]orce [C]lause) because it can be accomplished by placing one in fear of future injury to his person or property, which 1) does not require threat of violent physical force and 2) does not require the intentional threat of the same." . Morgan also argues that "the '[R]esidual [C]lause' within § 924(c)(3)(B), is unconstitutionally vague and cannot sustain a conviction." [Id.]. For the reasons that follow, Morgan's arguments lack merit, and his motion to dismiss the § 924(c) charges should be denied.
B. Analysis
1. Hobbs Act Robbery is a "Crime of Violence" Under § 924(c)'s Force Clause
a. The "Categorical Approach" Urged by Morgan is Inapplicable
Morgan first asserts that Hobbs Act robbery is not a "crime of violence" under § 924(c)'s Force Clause because that robbery offense, by definition, does not categorically require a threat of violent physical force. [49 at 4-9]. In support of his contention, Morgan urges the Court to employ the "categorical approach" that federal courts use when determining whether a prior conviction qualifies as a "violent felony" under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). The Court declines to do so for the following reasons.
As a general matter, the ACCA requires a district court to impose a mandatory minimum sentence where a person convicted of an offense involving a firearm "has three previous convictions . . . for a violent felony . . . committed on occasions different from one another." 18 U.S.C. § 924(e)(1) (emphasis added). Similar to the definition of "crime of violence" under the Force Clause, the ACCA provides that a crime that "has as an element the use, attempted use, or threatened use of physical force against the person of another" is considered a "violent felony." 18 U.S.C. § 924(e)(2)(B)(i). In evaluating whether a prior conviction constitutes a "violent felony," district courts primarily "use a categorical approach and look to the statutory definition of the crime charged, rather than the actual facts of the defendant's prior conviction." U.S. v. Honeycutt, No. 13-6577, 2014 U.S. App. LEXIS 24814, at *5 (6th Cir. Sep. 12, 2014).
Originally endorsed in Taylor v. United States, 495 U.S. 575 (1990), the "categorical approach" requires that:
Sentencing courts may "look only to the statutory definitions"—i.e., the elements—of a defendant's prior offenses, and not "to the particular facts underlying those convictions." [Taylor, 495 U.S.] at 600. If the relevant statute has the same elements as the 'generic' ACCA crime, then the prior conviction can serve as an ACCA predicate; so too if the statute defines the crime more narrowly, because anyone convicted under that law is "necessarily . . . guilty of all the [generic crime's] elements." Id. at 599. But if the statute sweeps more broadly than the generic crime, a conviction under that law cannot count as an ACCA predicate, even if the defendant actually committed the offense in its generic form. The key . . . is elements, not facts.Descamps v. United States, 133 S. Ct. 2276, 2283 (2013) (italics in original). In view of the foregoing, Morgan contends that Hobbs Act robbery is not a "crime of violence" because a person may be convicted of that offense without having engaged in actual violence or the application of force, or having threatened the use of force or violence. For instance, Morgan posits a criminal defendant who is charged with "threatening to poison another, which involves no use or threatened use of force." (quoting United States v. Torres-Miguel, 701 F.3d 165, 167 (4th Cir. 2012)).
In a fairly recent U.S. Supreme Court case not cited by Morgan, the Court implicitly rejected the rationale of Torres-Miguel. See United States v. Castleman, 134 S.Ct. 1405, 1414-15 (2014). At issue in Castleman was a statute which included as an element "the use or attempted use of physical force." Id. at 1407 (quoting 18 U.S.C. § 921(a)(33)(A)(ii)). Like Morgan, the Castleman defendant argued that while one's use of poison on another may cause him physical harm, "no one would say that a poisoner [uses] force ... when he or she sprinkles poison in a victim's drink." Id. at 1415. But the Castleman Court squarely rejected that argument, reasoning that "[t]he use of force ... is not the act of sprinkling the poison" but "the act of employing poison knowingly as a device to cause physical harm." Id. Thus, even if the Court were to apply the analytical framework urged by Morgan - which it declines to do for the reasons discussed below - it would find that his motion lacks merit and should be denied.
The problem with this argument, however, is that Morgan has not shown that the "categorical approach" applies outside of the ACCA (or similar) context where a district court must determine whether a past offense adjudicated before a different tribunal, conforms to a particular statutory definition. Indeed, most all of the cases on which Morgan relies arose in the sentencing context where a district court was deciding whether a past offense, the facts of which were not adjudicated before that court, conformed to a particular statutory definition.
The United States Supreme Court has explained that the "categorical approach" serves three main functions that are unique to the ACCA. Descamps, 133 S. Ct. at 2287. "First, it comports with ACCA's text and history. Second, it avoids the Sixth Amendment concerns that would arise from sentencing courts' making findings of fact that properly belong to juries. And third, it averts 'the practical difficulties and potential unfairness of a factual approach.'" Id. (quoting Taylor, 495 U.S. at 601). None of these concerns are implicated in the present case where the finder of fact will be tasked with determining whether Morgan is guilty of the Hobbs Act robbery and § 924(c) charges he is facing.
As for the statutory text and history, the Supreme Court has noted that the "ACCA increases the sentence of a defendant who has three 'previous convictions' for a violent felony" and that "Congress intended the sentencing court to look only to the fact that the defendant had been convicted of crimes falling within certain categories, and not to the facts underlying the prior convictions." Taylor, 495 U.S. at 600 (emphasis added). Since the purpose of the ACCA is to deter recurrent violent criminal conduct by mandating sentence enhancements for individuals with prior violent felony convictions, the focus of the "categorical approach" is inherently backward-looking. It provides a framework for evaluating whether "a prior crime would qualify as a predicate offense" without having to delve into "the facts of a prior offense." Decamps, 133 S. Ct. at 2287. Thus, the "categorical approach" has no bearing on this case since there is no prior conviction under review, and the facts underlying the instant § 924(c) charges will eventually be determined by the finder of fact at trial.
Similarly, "the categorical approach's Sixth Amendment underpinnings," are not relevant here. Id. at 2288. The Sixth Amendment provides that "[i]n all criminal trials, the accused shall enjoy the right to a speedy and public trial,...to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him," and other rights designed to ensure a fair trial. U.S. Const. amend. VI. In a matter such as this, however, where there is no prior conviction under review, there is no risk that the district court will venture "beyond merely identifying a prior conviction" and engage in factual findings that would "increase[ ] the penalty for a crime beyond the prescribed statutory maximum," without being "submitted to a jury, and proved beyond a reasonable doubt." Id. (quoting Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)). Even the practical "difficulties and inequities" that initially spurred the Supreme Court "to adopt the categorical approach" are not present here. Id. at 2289. The absence of a prior conviction obviates any concern that the district court would have to "expend resources examining (often aged) documents for evidence that a defendant admitted in a plea colloquy, or a prosecutor showed at [a prior] trial," that would also "satisfy an element of the relevant generic offense." Id.
Moreover, this Court's examination of the relevant authorities failed to produce a single case where a federal court explicitly endorsed the "categorical approach" in evaluating the validity of the criminal charges of an indictment on a pretrial motion to dismiss. This is also evidenced by the fact that Morgan's brief is peppered with cases invoking either the ACCA or the sentencing guidelines, while none of them involve the current procedural posture of this case, i.e., a motion to dismiss the charges of an indictment alleging the use of a firearm during and in relation to a crime of violence before the same court that will adjudicate whether the defendant, in fact, committed the predicate offense of Hobbs Act robbery.
Two cases, both from the United States District Court for the Eastern District of Virginia, thoroughly discussed the application of the "categorical approach" to pretrial motions to dismiss the counts of an indictment, and neither treated this course of action favorably. In the most recently issued opinion, U.S. v. McDaniels, No. 15-171, 2015 U.S. Dist. LEXIS 158209 (E.D. Va. Nov. 23, 2015), the defendant moved to dismiss the same § 924(c) charge that Morgan seeks to dismiss here, "using, carrying, and brandishing a firearm during and in relation to a crime of violence." 18 U.S.C. § 924(c). The district court expressly found that "the categorical approach does not apply on a pre-trial motion to dismiss an indictment," id. at *13, largely because that framework originated as "a judicially devised mode of analysis born and developed in the sentencing context for the purpose of ensuring that defendants are not punished for facts that are not found beyond a reasonable doubt by a jury." Id. at *5. Additionally, the district court reasoned that "the practical considerations that gave rise to the categorical approach in the sentencing context are not present on a pre-trial motion to dismiss an indictment," i.e., ensuring that sentencing courts do not have to "re-try the factual basis for prior convictions." Id. at *12. Only in dicta did the district court apply the "categorical approach" and determine, as an alternative basis for denying the defendant's motion, that Hobbs Act robbery qualifies as a "crime of violence" under the Force Clause.
The second case, U.S. v. Standberry, No. 15-102, 2015 U.S. Dist. LEXIS 13855 (E.D. Va. Oct. 9, 2015), involved two other pretrial motions to dismiss the counts of an indictment charging the same offenses as those presented in this case. The district court in Standberry questioned the utility of employing the "categorical approach" beyond the sentencing context in order to determine whether Hobbs Act robbery is a "crime of violence." At the very outset of its decision, the district court noted that "[a]lthough both of the Defendants and the Government urge the Court to employ a categorical analysis in evaluating the firearm charges" such an approach had "rarely [been] utilized outside its original intended purpose. Its value and utility are questionable in the present context where the violent nature of the alleged robberies is readily apparent from the face of the Superseding Indictment." Id. at *4. Nonetheless, "[w]ith some reservation," the district court yielded to "the wishes of the parties" and applied the "categorical approach," id. at *7, ultimately concluding that Hobbs Act robbery constitutes a "crime of violence under the Force Clause." Id. at *15. Several other district courts have similarly questioned the usefulness of employing the "categorical approach" in evaluating whether to dismiss the counts of an indictment at the pretrial stage of a criminal action. See e.g., United States v. Bauserman, No. 14-35, 2015 U.S. Dist. LEXIS 163359, at *7-8 (N.D. Ind. Dec. 7, 2015); United States v. Church, No. 15-42, 2015 U.S. Dist. LEXIS 160701, at *14-20 (N.D. Ind. Dec. 1, 2015); United States v. Brownlow, No. 15-34, 2015 U.S. Dist. LEXIS 144784, at *5-6 n.3 (N.D. Ala. Oct. 26, 2015) (applying the "categorical approach" on a pretrial motion to dismiss the counts of an indictment, but noting that the "distinction between past convictions [under the ACCA] and present conduct would appear to foreshadow the abandonment of the categorical approach for § 924(c) offenses in favor of findings of fact based on the actual conduct of the defendant in committing the predicate offense."); but see United States v. Evans, No. 15-57, 2015 U.S. Dist. LEXIS 142477, at *8-15 (E.D.N.C. Oct. 20, 2015) (employing the "categorical approach" on a pretrial motion to dismiss the counts of an indictment although neither party challenged its application).
The defendant in McDaniels also raised the argument that the Fourth Circuit Court of Appeals had actually applied the "categorical approach" outside of the sentencing context in both United States v. Fuertes, Nos. 13-4755, 13-4931, 2015 U.S. App. LEXIS 14475 (4th Cir. Aug. 18, 2015) and United States v. Naughton, No. 13-4816, 2015 U.S. App. LEXIS 15592 (4th Cir. Sep. 2, 2015). This appears to accurately characterize both cases, though the McDaniels court apparently saw it differently. Either way, these Fourth Circuit cases are not binding on this Court. In Fuertes, the Fourth Circuit reversed a district court's denial of two co-defendants' post-trial motions for judgment of acquittal after it determined that the predicate offense alleged in the indictment, sex trafficking by force, fraud, or coercion, 18 U.S.C. § 1591(a), does not "qualif[y] categorically as a crime of violence under the force clause." Fuertes, 2015 U.S. App. LEXIS 14475, at *25. Likewise, in Naughton, the Fourth Circuit reversed a district court's denial of two post-trial motions for judgment of acquittal on the ground that the predicate offense alleged in the indictment, conspiracy to commit sex trafficking, 18 U.S.C. § 1594(c), "does not categorically qualify as a crime of violence" for purposes of the Force Clause. Naughton, 2015 U.S. App. LEXIS 15592, at *20. Nor is the Fourth Circuit the only appellate court to have extended the "categorical approach" beyond the scope of sentencing. See United States v. McGuire, 706 F.3d 1333, 1337 (11th Cir. 2013) (finding that the predicate offense alleged in the indictment, attempting to "set[] fire to, damage[], destroy[], disable[], or wreck[] an[] aircraft in the special aircraft jurisdiction of the United States," 18 U.S.C. §32(a)(1), qualified as a "crime of violence" under the Force Clause). Though these cases carry some precedential value, the Sixth Circuit has not given any indication as to whether it would follow Fuertes, Naughton, and McGuire. Accordingly, for the reasons discussed herein, and with due respect and consideration to the courts who have applied the categorical approach as Morgan urges, the Court nevertheless finds that the concerns which motivated the Supreme Court to adopt the "categorical approach" are not present here, and the Sixth Circuit, at least by implication, has countenanced allowing juries to determine, under the current statutory framework and definitions, whether the facts of any particular case satisfy the requirements for a conviction under 18 U.S.C. § 924(c).
Finally, in numerous cases decided by the Supreme Court, the Sixth Circuit Court of Appeals, and several other Circuit Courts of Appeals, the fact that Hobbs Act robbery served as the predicate offense for convictions under 18 U.S.C. § 924(c) was never questioned. See e.g., Alleyne v. United States, 133 S. Ct. 2151, 2155-56 (2013); United States v. Maddox, 803 F.3d 1215, 1217 (11th Cir. 2015); United States v. McBride, No. 14-1851, 2015 U.S. App. LEXIS 14885, at *1 (3d Cir. Aug. 24, 2015); United States v. Richardson, 793 F.3d 612, 617 (6th Cir. 2015); United States v. Adams, 789 F.3d 713, 713 (7th Cir. 2015); see also United States v. Mendez, 992 F.2d 1488, 1491 (9th Cir. 1993) (noting that Hobbs Act robbery "indisputably qualifies as a crime of violence.").
In sum, the Court concludes that Morgan's reliance on the "categorical approach" is misplaced, and that the Court must instead analyze the text of the Force Clause to discern whether Hobbs Act robbery constitutes a "crime of violence" as that term is statutorily defined. See Bailey v. United States, 516 U.S. 137, 144 (1995) (noting that statutory interpretation begins "with the language of the statute.").
b. Hobbs Act Robbery is a Crime of Violence under the Relevant Statutes' Definitions and Plain Language
The Force Clause defines the term "crime of violence" as "a felony" that "has as an element the use, attempted use, or threatened use of physical force against the person . . . of another." 18 U.S.C. §924(c)(3)(A) (emphasis added). Black's Law Dictionary defines the term "element" as "[a] constituent part of a claim that must be proved for the claim to succeed." Black's Law Dictionary 597 (9th ed. 2009). On the other hand, the Supreme Court has recognized that a criminal statute may "set[] out one or more elements of the offense in the alternative," Descamps, 133 S. Ct. at 2282, thereby resulting in variant forms of the same offense. Several courts have held that Hobbs Act robbery is such an offense because the offense's "robbery" element may be divided into several alternatively-worded constituent parts, i.e., it may be accomplished "by means of actual or threatened force, or violence, or fear of injury, immediate or future" against another person. 18 U.S.C. § 1951(b)(1) (emphasis added); see e.g., United States v. Mackie, No. 14-183, 2015 WL 5732554, at *3 (W.D. N.C. Sep. 30, 2015) ("A Hobbs Act robbery under Section 1951 can be pled in at least six ways under the language of the statute: (1) by robbery; (2) by extortion; (3) by attempting to so rob or extort; (4) by conspiring to so rob or extort; (5) by committing physical violence to any person or property in furtherance of a plan or purpose to so rob or extort; or (6) by threatening to commit physical violence to any person or property in furtherance of a plan or purpose to so rob or extort.") (citing 18 U.S.C. § 1951); United States v. Anglin, No. 14-3, 2015 U.S. Dist. LEXIS 151027, at *19 (E.D. Wis. Nov. 6, 2015); Brownlow, 2015 U.S. Dist. LEXIS 144784, at *8; United States v. Redmond, No. 14-226, 2015 U.S. Dist. LEXIS 139231, at *6 (W.D.N.C. Oct. 13, 2015).
In the similar context of the Hobbs Act extortion statute, see 18 U.S.C. § 1951(b)(2) ("The term 'extortion' means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right."), judges of the Eastern District of Michigan have consistently considered such alternative variants of the crime to be "elements," the applicable ones of which must be proved beyond a reasonable doubt before the jury. See e.g., United States v. Beasley, No. 12-20030, 2015 WL 1737478, at *9 (E.D. Mich. Apr. 16, 2015) ("the essential elements of the crime of Hobbs Act extortion are... (1) that the defendant knowingly and wrongfully obtained money or other property from another person or persons; (2) that the defendant did so by means of extortion either under color of official right or by wrongful fear of economic harm..."); United States v. Kilpatrick, No. 10-20403, 2013 WL 4041866, at *3 (E.D. Mich. Aug. 8, 2013) ("To find [defendants] guilty of extortion under the Hobbs Act, the government had to prove, beyond a reasonable doubt, the following elements: (1) that the Defendant, or a person whom he aided and abetted, knowingly and wrongfully obtained money or other property from another person or persons; (2) that the Defendant, or person whom he aided and abetted, did so by means of extortion, either under color of official right, or by wrongful fear of economic harm."). See also, United States v. Delle Donna, 2008 WL 3821774, at *2 (D. N.J. Aug. 12, 2008) ("The elements of Hobbs Act extortion, as this Court charged the jury without objection, include: (1) each Defendant knowingly and willfully obtained money or property from another, with that person's consent; (2) by means of extortion under color of official right ...") (emphasis added).
Thus, unlike the "categorical approach" which asks whether Hobbs Act robbery requires a "use of physical force" (whether actual, attempted or threatened) against another person under every conceivable version of the offense, the salient question here is simply whether Hobbs Act robbery "has as an element the . . . use of physical force" (again, whether actual, attempted or threatened) against another person under any one of those versions. 18 U.S.C. § 924(c)(3)(A) (emphasis added). The jury can then be charged as to those elements. See fn. 5.
Using this straightforward approach, Hobbs Act robbery falls squarely within the ambit of § 924(c)(3)'s Force Clause. To begin with, neither party disputes the basic premise that Hobbs Act robbery is a felony. 18 U.S.C. § 3559(a)(3). And, under the statutory language itself, the Hobbs Act clearly provides that "robbery" may be committed "by means of actual or threatened force , or violence, or fear of injury, immediate or future" against another person. 18 U.S.C. § 1951(b)(1) (emphasis added). As such, the offense "has as an element," albeit an alternative one, see supra fn. 5, "the use, attempted use, or threatened use of physical force against the person . . . of another," which is all that is required to satisfy the definition of "crime of violence" under the Force Clause.
The Court also rejects Morgan's argument that "the act of putting someone in fear of injury, as defined under the Hobbs Act robbery statute, does not constitute a 'crime of violence' under the force clause because it does not require an intentional threat of physical force." (emphasis Morgan's). Morgan errs by again essentially applying a categorical approach focused on whether any of the alternative versions of the Hobbs Act robbery offense could plausibly be violated without constituting a "crime of violence" under § 924(c)(3)(A). For the same reasons discussed above, the Court rejects using this approach at this stage of the proceedings. At any rate, Morgan's argument fails on the merits.
While the relevant statutes here do not expressly specify a particular mens rea requirement, it must be remembered that the underlying charge against Morgan is Hobbs Act robbery, which, however accomplished, necessarily involves an intent to unlawfully take something from another. See e.g., U.S. v. Cobb, 2010 WL 3463175, at *8 (6th Cir. Sept. 2, 2010) ("We have determined that both Hobbs Act violations and bank robberies are specific intent crimes; intent is an essential element of each offense despite the fact that it is not mentioned in the crimes' statutory definitions." (citing United States v. Dabish, 708 F.2d 240, 242 (6th Cir.1983) and United States v. Beasley, 438 F.2d 1279, 1282 (6th Cir.1971)). See also United States v. Tobias, 33 Fed. Appx. 547, 549 (2d Cir. 2002) (holding that the mens rea element of a Hobbs Act offense was sufficiently set forth in the indictment where "[t]he indictment tracked the language of 18 U.S.C. § 1951, using the term 'robbery,' which necessarily implies knowing and willful conduct"); Standberry, 2015 WL 5920008, at *4-5 (finding that Morgan's same "argument envisions a somewhat implausible paradigm where a defendant unlawfully obtains another person's property against their will by unintentionally placing the victim in fear of injury....Obviously, the taking of personal property from another against their will by means of actual or threatened force, or violence or fear of injury, immediate or future, entails a higher degree of intent than negligent or merely accidental conduct.").
Morgan's reliance on the Fourth Circuit's decision in Garcia v. Gonzales, 455 F.3d 465 (4th Cir. 2006), is misplaced. In that case, the defendant was a national of Trinidad and Tobago, and a lawful permanent resident of the United States, when he was convicted of violating New York Penal Law § 120.05, one element of which is "recklessly caus[ing] serious physical injury to another person..." Id. at 467 (emphasis added) (quoting N.Y. Penal Law § 120.05). The Board of Immigration Appeals found the defendant eligible for removal from the United States under 8 U.S.C. § 1227(a)(2)(A)(iii) on the ground that this conviction constituted a "crime of violence" under 18 U.S.C. § 16 (which uses verbatim language to that contained in § 924(c)(3), i.e., the same Force and Residual Clauses). The Fourth Circuit merely made the non-remarkable observation that because § 16's "force clause" required "intentional" conduct, the defendant's conviction for less culpable "reckless" conduct was "beyond the [statute's] scope," and could not be grounds for his removal. Garcia at 468. Garcia has no implications here because, as discussed above, "intent" is an element of any Hobbs Act robbery charge. E.g., Cobb, at *8.
The Court also rejects Morgan's argument that since the element of "intimidation" in the federal bank robbery statute, 18 U.S.C. § 2113, "does not require an intentional threat of physical force," and since that element has the same definition as "fear of injury" under Hobbs Act robbery, it necessarily follows that neither of these offenses should be considered "crimes of violence." . In numerous cases the Sixth Circuit has affirmed the convictions of criminal defendants for committing (1) armed bank robbery and (2) brandishing a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii), without expressing any reservation about whether armed bank robbery constitutes a "crime of violence." See e.g. United States v. Crowe, 614 F. App'x 303, 306 (6th Cir. 2015); United States v. Lawrence, 735 F.3d 385 (6th Cir. 2013) cert. denied, 135 S. Ct. 753 (2014) (affirming conviction in death penalty case where defendant raised no less than 24 claims of error without asserting that armed bank robbery is "categorically" not a "crime of violence"). See also, United States v. Shuck, 481 F. App'x 600, 603 (11th Cir. 2012) ("bank robbery, a natural equivalent of generic robbery , has as an element the threatened use of physical force" and thus "bank robbery 'by means of intimidation' [is] a crime of violence.") (emphasis added).
For all of the foregoing reasons, Morgan's argument that Hobbs Act robbery is not a crime of violence under § 924(c)(3)'s Force Clause lacks merit, and his motion to dismiss the related charges should be denied.
2. 18 U.S.C. § 924(c)(3)(B) is Not Unconstitutionally Vague
Assuming for purposes of argument that Morgan is correct, and Hobbs Act robbery is not a "crime of violence" under the Force Clause, he recognizes that he is still potentially subject to prosecution for committing a "crime of violence" under the Residual Clause, i.e., for committing "an offense that is a felony ... that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." 18 U.S.C. § 924(c)(3)(B). Morgan argues, however, that this (the Residual Clause's) definition of "crime of violence" is unconstitutionally vague in view of the Supreme Court's recent decision in Johnson v. United States, 135 S. Ct. 2551 (2015), which struck down the ACCA's similarly worded residual clause. [49, 11-17]. This argument lacks merit.
In Johnson, the Court confronted a Fifth Amendment vagueness challenge to the ACCA's definition of the term "violent felony", which is defined as:
any crime punishable by imprisonment for a term exceeding one year . . . that —18 U.S.C. § 924(e)(2)(B) (emphasis added). Adhering to its own ACCA precedents, the Johnson Court recognized that it was constrained to follow the categorical approach in "deciding whether an offense 'is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another'" Johnson, 135 S. Ct. at 2557. After applying this standard, the Court concluded that the ACCA's Residual Clause was "unconstitutionally vague" since it left "grave uncertainty about how to estimate the risk posed by a crime" and because it fostered "uncertainty about how much risk it takes for a crime to qualify as a violent felony." Id. at 2558.
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
Morgan's reliance on Johnson is misplaced. Unlike the current case's procedural posture, Johnson was evaluating the application of the ACCA's residual clause to a prior conviction. Thus, the Court explained its concern was that the sentencing judge, considering the effect of a defendant's prior convictions, would be required "to picture the kind of conduct that the [prior] crime involves in 'the ordinary case,' and to judge whether that abstraction presents a serious potential risk of physical injury." Johnson, 135 S. Ct. at 2257. It found unconstitutional "the judicial assessment of risk to a judicially imagined 'ordinary case' of a crime, not to real-world facts or statutory elements." Id. As discussed above, however, the procedural posture of Morgan's case is very different; here a jury will be asked to consider the statutory elements not in the context of an amorphous "ordinary case," but with respect to the "real-world facts" as they determine them to be.
Indeed, the Johnson Court left no doubt of this distinction's significance when it expressly rejected Morgan's very argument:
The Government and the dissent next point out that dozens of federal and state criminal laws use terms like "substantial risk," "grave risk," and "unreasonable risk," suggesting that to hold the residual clause unconstitutional is to place these provisions in constitutional doubt. Not at all. Almost none of the cited laws links a phrase such as "substantial risk" to a confusing list of examples ... More importantly, almost all of the cited laws require gauging the riskiness of conduct in which an individual defendant engages on a particular occasion. As a general matter, we do not doubt the constitutionality of laws that call for the application of a qualitative standard such as "substantial risk" to real-world conduct ; "the law is full of instances where a man's fate depends on his estimating rightly ... some matter of degree"...Id. at 2561 (emphasis added) (internal citations omitted).
Under the foregoing analysis, § 924(c)(3)'s Residual Clause clearly passes constitutional muster as a criminal charge; § 924(c)(3)'s Residual Clause does not delineate a series of enumerated offenses that create "uncertainty about how much risk it takes for a crime to qualify as" a "crime of violence," and the jury here will simply be asked to apply the statute's qualitative "substantial risk" standard to real-world conduct. Id. at 2558, 2561.
In sum, Morgan's argument that § 924(c)(3)'s Residual Clause is unconstitutionally vague lacks merit, and his motion to dismiss the related charges should be denied.
III. CONCLUSION
For the aforementioned reasons, the Court RECOMMENDS that Morgan's motion to dismiss Counts Two and Four of the indictment [49] be DENIED. Dated: December 18, 2015
Ann Arbor, Michigan
s/David R. Grand
DAVID R. GRAND
United States Magistrate Judge
NOTICE TO THE PARTIES REGARDING OBJECTIONS
The parties to this action may object to and seek review of this Report and Recommendation, but are required to act within fourteen (14) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Secretary of HHS, 932 F.2d 505, 508 (6th Cir.1991); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir.1981). The filing of objections which raise some issues, but fail to raise others with specificity, will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Secretary of HHS, 931 F.2d 390, 401 (6th Cir.1991); Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this magistrate judge. A party may respond to another party's objections within 14 days after being served with a copy. See Fed. R. Civ. P. 72(b)(2); 28 U.S.C. §636(b)(1). Any such response should be concise, and should address specifically, and in the same order raised, each issue presented in the objections.
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record via email addresses the court has on file.
s/Eddrey O. Butts
EDDREY O. BUTTS
Case Manager Dated: December 18, 2015